October 20, 2010 - The Tea Party’s Red Queen, Sarah Palin recently sent a Tweet urging Pennsylvania voters to vote for John Raese for the United States Senate.   There was a problem.  Raese is the Republican Nominee for the West Virginia Senate seat held by the late Senator Robert Byrd. 

Raese has taken some curious positions in his campaign.  He is one of two Republican Senatorial nominees to make the argument that Federal minimum wage legislation is unconstitutional.  The other is Joe Miller, the Tea Party favorite who ousted Republican Senator Lisa Murkowski in Alaska’s primary.  Miller was also endorsed by Palin.  They don’t call for repeal of the legislation.  They argue that Congress has no authority to pass a minimum wage or any other legislation to protect workers in the market place and any such law is an unconstitutional invasion of the liberty of contract – a proposition that the United States Supreme Court unanimously rejected in 1941.

The Federal Minimum Wage is now set at $7.25 an hour.  At the minimum wage a 40 hour a week job pays just $15,080 a year if the worker doesn’t take any time off, just about 70% of the poverty level.  If you adjust for inflation the Federal Minimum Wage has dropped 17% from that established in 1968.  To put the minimum wage in perspective, the top 25 hedge fund managers took home more than $25 Billion in 2009, the year the Congress brought the minimum wage up to its current level.

Republicans have historically made the argument that increasing the minimum wage was bad economic policy; that any increase would be a job killing measure.  Bill Brady, the Republican Candidate for Illinois Governor makes the argument that the state should reduce its minimum wage to the Federal Level to recover jobs it has lost to other less generous states.  Until Raese and Miller there has been no serious suggestion that a judicial attack should be made on the minimum wage.  But now, having given up hope that legislative efforts at rolling it back will work, the Tea Party conservatives are looking to conservative judicial activists to get rid of what they see as a violation of corporate rights.

Most legal scholars doubt that such an attack would be effective.  The issue seems to have been settled when the Supreme Court upheld the constitutionality of the Fair Labor Standards Act that FDR signed in 1938.  But that ignores the impact of conservative judicial activism on what has been regarded as settled law for 72 years.  The activist Roberts Court has just this year stood a century of settled law on its head in the Citizens United case by discovering in the First Amendment a corporate right to free speech by a vote of 5 to 4.  Can wage-hour and worker safety legislation withstand a similar effort in the judicial arena?

For the foreseeable future the conservative judicial activist 5-4 majority on the Supreme Court will continue to adopt the Red Queen’s judicial philosophy, sentence first – verdict afterwards, in which opinions are written to justify pre-determined political outcomes.  With the political arena shifting from the legislative and executive venues to a politicized judiciary our most cherished principles are at risk.